Social media like Facebook, Twitter, Instagram, and the like, are used by many people with great frequency, often daily or multiple times per day. While social media can be a great way to stay in touch with people and express your thoughts, feelings and opinions, the posts on social media sites oftentimes can provide powerful evidence in litigation.
Here are some lessons about social media that should be followed in all litigation matters:
1. Clients must stay off social media if they become involved in litigation (remember the recent story about an $80,000 settlement that was voided when a settling party’s daughter violated a confidentiality clause in the settlement agreement by posting about the settlement on Facebook!!).
2. Don’t allow clients to go back and try to edit or sanitize past social media posts after they become involved in litigation – a court in New Jersey recently imposed substantial monetary sanctions on a party for deleting his Facebook account and thereby destroying important evidence.
3. At the risk of stating the obvious, lawyers and litigants should not use social media with judges, opposing counsel, adverse witnesses, jurors, etc.
4. Don’t post sensitive information or secrets (including financial information, schedules, settlement strategy, litigation strategy, etc.) on any social media.
Social media evidence is becoming more and more important in litigation matters. All lawyers should adopt a social media policy and clearly communicate it to all clients at the outset of a litigation matter to avoid problems down the line.